Who Will Be the Next Victim of the Grand Bounce? A nonpartisan, nonjudgmental look at the “Hair-Trigger” Form of Government

Sunday, June 3, 2012

What to Expect When You're Expecting a Recall -- Wisconsin Gubernatorial/Legislative edition

June 5 is D-Day for the recall. Governor Scott Walker, currently leading in the polls, is facing off against Milwaukee Mayor Tom Barrett. Lieutenant Governor Rebecca Kleefisch is facing firefighter union leader Mahlon Mitchell. Four Republican state Senate seats are up -- three are recall votes, one is replacing a Senator who resigned instead of facing a recall. These aren't the only recalls taking place on Tuesday -- there will be at least 17 recalls nationwide -- but they are by far the most prominent.

The Wisconsin recall could have national ramifications for the 2012 election and beyond. If Walker wins, the Democrats and the unions are facing a potential serious backlash in November in a state that they certainly want to win (despite the political chatter and my own best interests, I doubt that the impact will be much beyond Wisconsin). Well, I could say I don't want to say I told you so, but obviously I'd be lying. Here's my early warning oped from last year about the dangers of the recall and here's my more recent article.

Of course, I have a history of being wrong about stuff like this. More important than my guesses, predictions and opinions are the facts. So let's take the deep dive in and check out the background, history and facts on the use of the recall and what it means for June 5 and beyond:

Three-peat? Past Governors' facing recalls:
Walker is only the third recall of a US Governor to get on the ballot in US history. The first was in 1921, when North Dakota's Lynn Frazier (Non-Partisan League) was ousted (the linked article by Fresno State Professor David Schecter has an excellent discussion of the Frazier recall). The second was against California Governor Gray Davis (Democrat) in 2003. Additionally, a recall was approved against Arizona Governor Evan Meacham (Republican) in 1988, but Meacham was impeached and removed by the legislature on the day the signatures were verified.

Despite the fact that gubernatorial recalls rarely get on the ballot, there have been tons of attempts to recall Governors. Before Davis got on the ballot, there were 31 recall attempts against a California Governor (we are now up to 45 attempts). In the last few years, recalls have been started against Governors in Michigan, New Jersey, Nevada, Arizona and Louisiana.

The end of the beginning or just the closing credits?
Will the recall of governors spread to other states? The recall appears to have grown heavily in use (see below), but a look at the laws of the different states suggest that gubernatorial recalls will remain a rare occurrence. Only 18 states have the recall for state level officials (plus Illinois has it just for the Governor). 7 of those states have a "judicial recall" or malfeasance standard, which demands some misdeeds by the official.

So, we are just looking at 11 states. As my article in the Atlantic notes, recall laws differ greatly by jurisdiction. Some of those differences make a gubernatorial recall both more difficult and potential counterproductive. There are currently attempts to recall the governors of Michigan and Louisiana, but neither have the financial backing that was seen helping push the Walker recall. And a big part of the reason for this is that Michigan and Louisiana recall laws are significantly different. Note though that the Michigan recall got 500,000 last year. However, the disparity in rules (some having nothing to do with ease of getting a recall on the ballot) are a strong reason that Wisconsin might not be the start of a trend.

There may be a few reasons for the lack of rematches, which I discuss here. Perhaps the best is that it allows the incumbent to tag the election under the "sore loser" designation, That being said, there are enough examples of recall rematches. Note that this year's Sheboygan mayoral recall featured a rematch.

A true first for the number two:
Rebecca Kleefisch is the first Lieutenant Governor in the nation to face a recall vote. She will be only the fifth non-governor to face a recall vote on the state level (the others were the Attorney General and Agriculture Secretary in North Dakota in 1921 and two public service commissioners in Oregon in 1922. All of them were ousted).

Since Wisconsin has a same ticket Governor-LG (I prefer the split ticket regime), there was some real election law questions on whether the LG would be automatically included in a recall of the Governor (My thoughts on why it should automatically be a separate vote here). The Democrats did not play around with lawsuits, and instead got enough signatures. Notably, they got significantly more signatures for the Walker recall then the Kleefisch one.

Kleefisch did not face a primary vote. While the Republican voters came out in force for Governor Scott Walker, they skipped the LG race. Was this a potential missed opportunity for the Republicans? Did voters not fully appreciate that they could switch lines to vote (as oppose to most primaries in Wisconsin)? While I think tactical voting is mostly an empty threat, this is one glaring example of where it could have worked with a minimum of effort.

Disorder in the House: Flipping the Chamber
Four Senate seats are on the ballot. The Senate is currently tied 16-16 with one of the recall seats open. If just one of the four Republicans lose, the legislature will flip from Republican (before the resignation) to Democratic control. Based on past history, should we expect voters to shy away from switching party control of the Senate? Nope! Besides last year's recall extravaganza, there have been four recalls (or five or six if you want to count California in 1995 multiple times, which we won't) that could have switched the legislature (Washington 1981, Michigan 1983, California 1995, Wisconsin 1996). All but the recall in Washington and last year's recall extravaganza in Wisconsin succeeded in ousting the official.

Note that in addition to these four recalls, Republican supporters have targeted two northern Wisconsin senators, one Democrat, one Republican, in recall campaigns, though one is "suspended" (which just means that it's dropped), and I haven't heard anything about the other one.

Let's define our terms Gentlemen, are we talking about Redistricting or Reapportionment:
The Senators are running in the districts they were elected in in 2010 (this was the subject of much debate and litigation). However, the winner will have to run in a fiercely (Republican) gerrymandered district. The result could be very difficult for any victorious Democrats (especially Lehman, a district that has flipped numerous times in the past).

You have selected Regicide: Legislative leaders edition
Senate Majority Leader Scott Fitzgerald is the fourth state legislative leader to face a recall. The first was California President Pro Tempore David Roberti in 1994. The second was Michigan House Speaker Andy Dillon in 2008. Both men triumphed. See the details here.

The third was Arizona Majority Leader Russell Pearce, who was kicked out of office on November 8 in a bitter recall battle. Perhaps worth noting is that Pearce lost to a Republican (Arizona does not have a primary, and the recall was just an all-in affair on election day). Pearce on the ballot this year for a new state Senate seat in a newly drawn district, so we'll see how much that takes.

There was one other recall of a legislative leader, though the circumstances were so bizarre that it has to be separated out. Without going into too much details about the California recall wars of 1995, Republican Doris Allen backed the Democrats in a closely divided Assembly that had already seen two recall votes. Allen was elected Speaker of the Assembly and served for a little over 3 months, but she stepped down before her recall. She lost her recall race.

Come on up for the rising: Can Turnout be overrated?Historically, recalls have been all about the fabled ground game. Everybody is talking about that now, though I question whether it has the same importance as in a regular recall. In a garden variety recall, frequently few people come out to vote (as in other special elections), as there is usually only one race on the ballot and you have to know about and care about the race (which is one of the reasons that the recall proponents have an advantage in the recall). In 1994, the three California Assembly recalls saw 20 to 25% turnout, with similar numbers in Michigan in 1983. The last Wisconsin recall before last year, against Gary George in 2003, saw 8% turnout.

However, there are exceptions, and this race clearly qualifies – Gray Davis’ recall had a much higher turnout than his 2002 reelection race. And, as Craig Gilbert of the Milwaukee Journal Sentinel pointed out before, the turnout for these votes are much higher than would normally be expected. The normal rules of the road for recalls will probably not play here -- we should expect a high turnout.

Perhaps counter-intuitively, I also think that turnout will not play as big a role as in past recall. This time it is not just getting your voters out. The key here may be grabbing those undecideds. This may be why the narratives have changed so much, from talking about collective bargaining to jobs, and recently with the release of Barrett polls, showing that it is still race.

This is not to say that turnout won't be critical. But in other recalls, there may be almost no non-hardcore partisans coming out. That is not the case in Wisconsin.

Turnout is always a popular issue for campaigns. When you think about it, turnout is one of the only tactics that they have real control over. No doubt it is important in this recall, but as opposed to other recalls in the past, it may not make the difference.

Winning isn't the only thing, it's everything:
As a general rule, recalls are very successful. There's no hard and fast numbers, but most politicians seeking reelection win -- it may be at a 75-85% clip. Obviously, that is a self-selecting group of people who are popular enough to run for reelection, but it is still a powerful statistic. Recalls turn that number on its head. Last year, there were 151 recalls in the country -- 85 resulted in removal. This year, we are also seeing a removal and resignation rate well above 50%. Both Governors who faced recalls were removed.

Among the 32 state legislative recalls, 17 were successful. That number is heavily skewed by the recalls in Wisconsin last year, where 7 of the 9 state senate recalls failed.

Party Line -- Is one party more likely to use recalls?:
I constantly get asked about the party breakdowns of the recall. Most of the recalls are on the local level, where the position is elected on a nonpartisan basis. When there is a partisan position, the party label is frequently a misleading method to judge recall use, as many are not based on D v. R partisan motivations. Sometimes Republicans recall Republicans, and Democrats recall Democrats.

However, you would see both parties are not shy about using recalls (for example of the 14 state legislative recalls from 1981-2008, most were launched against Democrats, and ethics played very little role in those recalls). Democrats have launched the majority of the recalls last year on the state level, which makes sense as the lost power in 2010.

Republicans or their backers have not been shy about using the recall for partisan gain (for example, Michigan, 1983, California, 1994, 1995 and 2003). Same thing with Democrats (Wisconsin and Michigan in 2010, 2008 California).

So, which party is most likely to launch a recall? Simple -- the one that is not in office.

Not Just Another State:
From 1908 (when Oregon became the first state to adopt the recall for state level officials) to 2010, there were 21 state legislative recall elections in the entire country (that I know of -- this is where the Bermuda Triangle angle comes in. Even the Election Commissions in some of the states don't know how many state recalls have been held. Past scholars missed many of the recalls in their studies).

Last year, there were 11, with nine of them taking place in Wisconsin. This year, Wisconsin has four. So, Wisconsin will have hosted 17 of the 36 known state legislative recalls in US history. Next on the list is California with 8. Other states that have had legislative recalls were Michigan (4), Oregon (3), Idaho (2), Washington (1) and Arizona (1).

Before last year, the maximum recalls in one legislative session were three in California in 1995. Michigan in 1983 (taxes) and Idaho in 1971 (pay raise) both had two at once.

Blowouts v. Barnburners:
I wouldn't expect a blowout, but throughout history recalls have tended that way. Here's a look at some blowouts and some close ones.

Recall Explosion: At least 103 recalls taken place or scheduled this year already
As others have stated, the last few years has seen a recall boomlet -- as mentioned above, last year, there were 151 recalls. This year, there have already been 103 recalls that have either taken place or are already scheduled to be on the ballot in the near future. There are at least 100 more recall attempts outstanding, waiting for petitions to be handed in. I'll have a lot more on this on Monday or Tuesday.

Most credit/blame the recession, but recall use has probably been growing for at least the last thirty years (Only seven of the 36 known state legislative recalls took place before 1981). Many pundits like to claim voter anger is driving the recall use, as if voters have been continiously happy for the last century before this.

I see technological changes as a major driver in the recalls growth. The Internet, email and social media allow unconnected voters to be drawn into a fight over a politician's alleged misdeeds and raise funds. Smartphones, spreadsheets and demographic data can maximize signature-gathering efforts. Even basic items like printers and word processing programs have made it simpler and cheaper to make high-quality fliers and other basic documents over the past several decades. This may be that why the recalls seem to have started taking off in the 1980s. Look at 1983 as one example, which featured prominent recalls against two Michigan Senators and San Francisco Mayor Dianne Feinstein, in the same year that saw the introduction of Lotus 1,2,3, Microsoft's Word and, of course, Automan.

Ain’t Misbehaving: Why Corruption was not the motivating factor for the adoption of the recall
Despite the widespread belief that the recall is only suppose to be used for criminal conduct and malfeasance, only four of the state legislative recalls in US History could claim to be based on conduct. The rest were on policy votes and politics. Despite the allegations against Scott Walker (or really, his aides) in the John Doe investigations, the Walker recall is clearly not about corruption. Neither was the Gray Davis one.

How important was the corruption issue in the adoption of the recall? I think it is hard to argue that it was really the motivating factor for the creators of the recall (especially the Father of the Recall, John Randolph Haynes). I can't link to the original articles, but here's a great write by Rod Farmer on the Progressive Era recall debates.

For some states, it was clearly important -- four of the last five states to adopt the recall have taken a judicial recall standard. However, I very much don't think it was the motivation for Wisconsin, which knew about the judicial recall standard (two states had it by then), but didn't adopt it. I don't want to get to in depth about the issue in this piece, but here is a detailed look at the state's adoption of the recall. Here is the Christian Schneider piece that takes an opposite tack. Here's an op-ed about it in the UK, and a piece on Alabama's proposed adoption of the recall.

Get ready, cause this ain't funny, I'm Scott W. and I'm about to get some money:
Wisconsin has an unusual campaign finance law for the recall – no limit on donations until the recall is certified. Wisconsin isn't the only state to have a very different campaign finance law for recalls, as Washington State, Idaho and Arizona shows. The result may be the most expensive race in the country, with analysts suggesting a $100 million price tag. Walker has already raised $31 million.

I'm not sure how much this law actually affected this recall (though it certainly can affect others). Outside groups might have just spent all that money anyway. I also question whether blaming Citizens United (I've heard that a lot) is accurate (at least for Walker's spending). The outside spending by individuals could have happened without CU.

Last year's state legislative recalls resulted in the most expensive legislative races in Wisconsin history -- $44 million was spent on those 9 races. By comparison, $20 million was dropped on all the Wisconsin legislative race in 2010, and $37.4 million on the Governor's races. Not a surprise -- in 1981, the recall of Washington State state Senator was found to be the most expensive state legislative election in that state's history.

Man is opposed to fair play, he wants it all, and he wants it his way:
We have heard, and will continue to hear complaints about the unfair use of the recall (see the post above on corruption). But these complaints can generally be dismissed out of hand. Why? There have been a number of principled opponents of the recall. Alexander Hamilton and William Howard Taft lead the pack in US history with their great dislike for the recall. Among modern commentators, the only one that I can think of is George Will. But they are few and far between.

Most of the people who complain about the recall are just really complaining about the recall being used against their side. Scott Walker signed petitions seeking policy-focused recalls. Bill Clinton was certainly not supporting the Gray Davis recall.

You want to know if somebody has a principled position on the recall? Look back at the Gray Davis one. If they're a Republican and they supported it, or if they are a Democrat and opposed it because it was unfair or "no do-overs," then they don't. They just don't want their candidate to lose, and they're hoping you either agree or just don't look into it.

(BTW, the above quote should be the governing motto for election law. And Tom Petty's version of the song is my favorite Dylan cover).

And that's why you always leave a note:
The validity of the signatures was big early on (and the group True the Vote is still arguing about them), but it has faded. Outside of questions on validity, the big real issue was a burden-shifting question -- who was responsible for striking down the invalid signatures? The question of who should be responsible for vetting the recalls had no effect on this race (if Walker or any of the other candidates felt they had any chance to eliminate enough signature to even embarrass the recall, I believe they would have tried). However, it is a question that can have an impact on local races. See the link for a discussion

Wisconsin's law, which allows any eligible voter to sign, helped minimize the number of invalids. In states where signatures are limited to registered voters, the failure rate is usually about 15%.

There is also a paper out that claims signature signers are more likely to vote. I thought that was obvious, but here it is.

"The dead have risen! And they're voting Republican!"Scott Walker has expressed concerns on voter fraud, claiming that he needs to win 53% of the vote, and claiming that voter fraud is responsible for 1-2 points, which is borne out by absolutely no statistics whatsoever. The RNC Chair has made the same claim. Election Law Blogger Professor Rick Hasen notes that this shameful allegations, which to my mind destroy the credibility of the electoral process solely to push a few base voters out to the polls, disappear into the ether once the election is over (here's his book, The Voting Wars). Of course, how voter ID laws stop the most obvious types of voter fraud (absentee ballots and corrupt election workers) is still unclear.

Interest Group Failures in using the recall:
Do voters care if the recall is perceived to be instigated by a political party or by an interest group? I argue that voters don't seem to object to political party backed recalls, but are frequently likely to reject those pushed by interest groups. This could help explain some of the electoral strategy (Barrett not discussing the collective bargaining issue). Check here for some thoughts.

The Buyin' Power of the Proletariat's Gone Down
The unions bet big on the recall. They funded the signature gathering efforts and provided a significant part of the manpower to get it on the ballot. But will this pay off for them? Barrett was most definitely not the union choice -- they wanted Kathleen Falk. She lost badly in the primary.

Quick historical factoid: The first recorded recall (LA Councilman James Davenport) was pushed by unions.

Just Fakin' it: Fake Democrats/Placeholders?
Both this year and last, the Republicans faced a serious problem of timing. Because Wisconsin has a primary (as far as I can tell, it is the only state with a recall primary law), the recalls might have fallen out on different days for different officials. If there is two candidates running for the same party nomination, they hold primary, and push off the general recall vote one month. But if there is only one candidate, then the recall is held on what would have been the primary day.

If some of the recalls were held on the same day as the primary, the Democrats might have had a big advantage. The Democrats were definitely holding a primary for the Governor position -- their voters were certain to turn out. So, Republicans put up fake Democrats or placeholder candidates to delay the recalls. By delaying it, the Republicans are ensuring they can concentrate all of their fire on June 5.

I find both terms misleading. The biggest problem with the "fake" appellation is that it implies the fake candidate is suppose to win, or even garner enough votes to embarrass the Democratic nominee. "Placeholder" is an inaccurate term as well. It implies that there is a place that had to be held. The Republicans were choosing to delay those recalls. I don't have a good term to use.

Never Kept a Dollar Past Sunset: Will the cost of the recall hurt the Democrats?
The recall has been estimated to cost $16-$18 millions to run (a bargain compared to California in 2003, but still). If you look at my recent Politico article and other posts, the "waste of money" argument generally doesn't work in a recall. I think it can work here, as independents will play a critical role in the success of this recall. It did work in Omaha, Nebraska Mayoral recall last year. I also think it could be very useful for the 2012 race, as Republicans can play up the fact that Democrats wasted state money on the recall. This plays perfectly into the Republican age old campaign slogan of profligate Democrats.

Of course, there's another aspect to the recall. This has got to have been a great financial boon to the state. As everyone has noted, the money is mostly flowing in from out of state. And it is being spent in a hurry. My guess is Wisconsin makes a tidy profit on this recall.

Judging the recall: Everyone with any sense has already left town
Last year, the results of the recall were spunned right round. This election seems a bit more clear cut. But let's say the Democrats lose to Walker, but take the Senate -- what's the result? Is a Democratic victory in the Senate temporary, given the ensuing gerrymandered districts they have to run in come 2012? Or is that enough to allow them some measure of victory? Since the commentators have been all over the place defending their sides, we can expect to see some crazy explanations. I should shortly have a (very late) review of one book examines the recall, John Nichols, Uprising (guilt leads me to at least throw in the link -- I got the book months ago and still haven't posted my review).

Changed the locks on my frontdoor? The inevitable post-recall reform act:
After major recalls, the first action by the recall opponents is to propose a reform to the law (in Arizona, they are trying to add a recall primary, Michigan tried to change their laws last year following the successful Paul Scott recall). Occasionally, they do succeed in making an important change. Wisconsin is no exception. Assemblyman Robin Vos (who apparently is being talked about for the Speakership) has proposed an amendment to limit the recall to elected official misbehavior (the judicial recall standard). The proposed amendment has a way to go before passing. It has to be approved by two separate sessions of the legislature and then voted on by the voters. No state has ever moved from one standard to the other.

Recall Survivors: Risin' up, straight to the top?
Surviving a recall can boost a career. Dianne Feinstein won the San Francisco Mayoral recall against her in 1983. By 1984 she was being talked about for the VP and was the US Senator by 1992. California State Senator Jeff Denham survived a recall in 2008, and was then elected to Congress. Also, for what it's worth, filmmaker Michael Moore has boasted of surviving a recall

Her? Will Kleefisch be the big winner of the recall?Some thoughts here on why Kleefisch may actually gain a great career boost thanks to the recall.

Comeback, Baby, Comeback: How a Resurrection Really Feels
Is a recall loss the end of a career? Not always. The most obvious example is North Dakota Governor Lynn Frazier was the first Governor to be recalled back in 1921. He was elected to the first of the three US Senate terms 18 months later. Seattle Mayor Hiram Gill lost a recall in 1914 and was back in office the following term. We also have recent examples: Quartzsite's mayor Ed Foster was kicked out last year in a high profile recall campaign. He retook the office this month (from the man who defeated him in the recall).

No future, no future for you?
Another big question that I'm constantly asked: Will we see a cycle of recall revenge? Who knows. I remember similar questions after Gray Davis was recalled, and in fact this has been a constant warning cry of recall opponents since the recall was first adopted over a century ago.

Now, there have been examples of repeated recall fights. A county in Michigan has had 340 recall threats filed in 20 years. In Alliance, Nebraska in 1987-88, there were two mayors recalled in 37 days, and then the replacement (for the $575 a year job) faced a third recall threat. But their aren't too many of them out there, and certainly none on the state level (I don't consider the 1995 California fight to rank).

However, I think we will see the recall continue to expand, as voters realize that "hey, I can use that thing" and try to take out vulnerable incumbents on their own (or with party or interest group backing). The recall is finally having its moment in the sun, and it doesn't look like it wants to relinquish the spotlight so quickly.